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“It is a wise father...”

16 June 14

A public petition before the Scottish Parliament seeks stronger rights for unmarried fathers, but would a different approach be preferable?

by Elaine E Sutherland

The role of fathers in their children’s lives has been in the news again lately. First, there was the recent report from the Equal Opportunities Committee of the Scottish Parliament claiming that fathers are being marginalised by the societal assumption that “parent” means “mother”(1). The committee’s conclusions follow its call for evidence about the experiences of single and separated fathers(2) and, consequently, its findings address only part of a complex issue since it did not seek input from mothers and children.

In the same week, fathers’ rights campaigners in Scotland seized on the suggestion by Lady Elizabeth Butler-Sloss, former President of the Family Division in England & Wales, that community service, rather than imprisonment, might be the appropriate sanction for parents who impede the other parent’s contact with a child(3).

More significantly for Scots lawyers, however, is the lodging of a public petition seeking further reform of the law on the familiar bones of contention – the recognition of non-marital fathers(4), the allocation of parental responsibilities and parental rights, and sanctions for parents who obstruct the other parent’s involvement in their child’s life.

Public petition PE1513

The petition, lodged by Ron Park on 14 April 2014, is in these terms:

“Calling on the Scottish Parliament to urge the Scottish Government to review the laws that govern parental rights and child access, and their implementation, to ensure unmarried fathers have guaranteed rights to be a part of their children's lives if they are deemed fit parents.”(5)

That PE1513 is very much about adult rights becomes all the clearer from its specific proposals for law reform. They are that (i) before a birth can be registered, both parents must be named on the birth certificate; (ii) all fit parents should have full parental responsibilities and parental rights; and (iii) failure to comply with a court order, in this context, “should be considered contempt of court”. The petition came before the Public Petitions Committee on 6 May, and the committee is seeking views on it by 27 June 2014, prior to considering it more fully.

Legal recognition of the non-marital father

At the outset, it is crucial to distinguish the two purposes of recognising a person as a child’s parent. The first is the factual matter of establishing parentage – who the child’s genetic parents are – and is aimed at respecting the child’s right to preserve his or her identity(6). The second purpose involves making a judgment about what, if any, consequences should flow from the genetic relationship: that is, who should be given the opportunity to engage in parenting. Consistent with international standards, when making judgments about parenting, Scots law has long taken a child-centred approach, giving paramountcy to the child’s best interests.

All births in Scotland must be registered within 21 days, with the obligation falling on “qualified informants”, being the child’s mother and married father, whom failing, certain relatives and other persons(7). Where the parents are not married to each other, the father may only be registered as such at the joint request of both parents or by one of them on production of declarations from each of them that the man is the child’s father(8). Mr Park is mistaken when he claims, in support of his petition, that “a woman can name any man she likes as the child’s father”, putting him to the cost of disproving the assertion.

The child’s mother can prevent the non-marital father from gaining any recognition at all by simply refusing to permit him to register. If he seeks to establish paternity by means of a declarator of parentage, she can further obstruct him by withholding consent to DNA testing of the child(9). She may do this for reasons that attract some sympathy, like the fear of resumed or continuing domestic violence or to protect the child from the knowledge that he or she is the product of an incestuous relationship or of rape.

Alternatively, she may do this for less commendable reasons, like her own resentment arising out of her relationship (or lack thereof) with the child’s father. The court can do nothing to compel the mother to consent to testing, nor can it substitute its own consent for that of a competent mother who refuses(10). Granted, it can draw an inference from her refusal to co-operate with testing, but there is no guarantee that this will help the father in establishing paternity(11).

Scale of the problem?

There is no doubt that some non-marital fathers are being excluded from their children’s lives, but what is the magnitude of the problem? In support of his petition, Mr Park quotes statistics from a variety of sources and arrives at a figure of 160,080 single fathers in Scotland “whose rights are unprotected under our current laws”(12). That number includes fathers who were once married to their child’s mother, but are now separated or divorced, as well as non-marital fathers. Assuming, arguendo, that this figure is correct, it does not follow that all – or even the majority – of these fathers are being denied parental responsibilities and parental rights.

First, there are the fathers who were married to their child’s mother at the time of the child’s birth or subsequently, since they acquired parental responsibilities and parental rights automatically(13). If they have lost any of these responsibilities and rights, it is because a court decided that was in the child’s best interests.

Secondly, non-marital fathers who registered (or re-registered) their paternity on or after 4 May 2006, when the Family Law (Scotland) Act 2006 came into force, are in exactly the same position as the married fathers(14). According to the most recent statistics from the Registrar General, the vast majority of fathers register their parentage and, in 2012, only 5.2% of children were registered in Scotland in the name of the mother only(15).

Thirdly, there is the small number of non-marital fathers who predate the 2006 Act but have concluded a parental responsibilities and rights agreement with the child’s mother(16). Again, they have full responsibilities and rights.

Fourthly are the fathers who secured some responsibilities and rights as a result of a court decree.

Finally, there are all the fathers who are exercising responsibilities and rights by informal agreement with the child’s mother. Thus, the figure cited by Mr Park grossly overstates the magnitude of the problem. That is not crucial, however, since an injustice suffered by only one person is an injustice nonetheless.

The present parental inequality presents a problem in terms of the Human Rights Act 1998 and, in particular, articles 8 (right to private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights. The European Court of Human Rights is becoming increasingly impatient with legal systems that discriminate against non-marital fathers and, on numerous occasions, has stated its position thus: “Very weighty reasons need to be put forward before a difference in treatment on the ground of sex or birth out of or within wedlock can be regarded as compatible with the Convention.”(17)

Similarly, article 18 of the UN Convention on the Rights of the Child promotes parental equality in child-rearing, while article 9 supports children retaining contact with separated parents unless the best interests of the child indicate otherwise.

Best interests of the child

What, then, will serve the child’s best interests? With the advent of DNA testing, it became possible to know the truth about parentage. In other contexts, like adoption and assisted reproduction using donor gametes, the current thinking is that knowing the truth about one’s genetic origins is preferable to deception or ignorance, and the UN Convention on the Rights of the Child, article 8, supports disclosure(18). That being the case, there is much to be said for ensuring that the fact of paternity can be established regardless of the mother’s preference. But is it always in the child’s best interests to know the truth about paternity? While Scottish authority on this point is rather old(19), there is precedent for the courts believing that it was not and, more recently, a similar conclusion was reaffirmed by a South African court(20).

The solution proposed in PE1513 is to require two parents to be registered at the time of registration. That is similar to the approach taken in England & Wales, but the law there makes an exception to accommodate maternal ignorance of the father’s identity or fear of harm from the child’s father(21). The absence of this qualification in PE1513 is a fatal flaw.

Another approach would be to create a presumption of paternity, akin to that currently applying to married fathers, but arising out of the fact that the parents are cohabiting or were cohabiting at the relevant time (however defined). In Australia, for example, a presumption of paternity arises where the mother cohabited with the alleged father at any time between 20 and 44 weeks before the child’s birth(22). That does not, however, address cases where the parents did not live together at the requisite time (or at all) and are in dispute over paternity.

It is submitted that a better approach would be to retain a place for the court in the whole process, but to broaden the tools at its disposal by empowering it to order DNA testing of the child, subject to a best interests test. What would constitute good reason to refuse the order could be left to the court’s discretion, or a statutory provision giving the court authority to order DNA testing might contain examples of good reasons for refusal(23).

The benefits of this solution are twofold. First, a mother who knew the identity of her child’s father and was refusing to allow him to register paternity for no good reason would lose the incentive to do so. There would be no point if the court would be likely to order DNA testing and grant him a declarator of parentage. Secondly, where a mother continued to withhold her consent to testing, the court would be alerted to the fact that there is likely to be a problem over the exercise of parental responsibilities and parental rights, possibly stemming from the mother’s fear of the father or her concern over his suitability to be involved in the child’s life. It could address that issue at the same time as it resolved the question of paternity, using the familiar principles applicable in such cases.

Doubtless, a range of arguments based on article 8 of the European Convention on Human Rights would be raised by those opposed to such a proposal(24). However, once it is remembered that lawful and proportionate derogation from article 8 is permitted “for the protection of the rights and freedoms of others” (arguably, the child and the father), any arguments based on it lose much of their force.

Full parental responsibilities and parental rights for all fit parents

The second issue addressed in PE1513 is what consequences should flow from establishing paternity in court. It proposes that: “After parentage is determined, and should both parents be found to be fit and able to care for the child should an investigation be necessary, full rights and responsibilities will be awarded to BOTH parents.”

This proposal fails to address a crucial issue: how the “investigation” into parental fitness – an investigation it accepts may be necessary in some cases – will be triggered.

As we have seen, married and registered non-marital fathers acquire full responsibilities and rights automatically. Where a father has been prevented from registering as such and the court grants a decree of paternity, one might think that parental rights and parental responsibility would flow from the decree, but that is not how the legislation works.

On the granting of a decree of paternity, the clerk of court must notify its “import” to the Registrar General(25). Where the effect of the decree renders the original birth record inaccurate or incomplete, the Registrar General is required to make an entry in the Register of Corrected Entries(26). This does not alter the original birth entry, nor any extract issued, since that would require re-registration of the birth(27). Where the child is under the age of 16, only a person who has parental responsibilities in respect of him or her may apply for re-registration(28). This creates something of a catch 22 situation for a non-marital father if the child’s mother continues to oppose his registration because, until he is registered as the child’s father, he does not have parental responsibilities and, thus, cannot seek re-registration – and without re-registration he does not acquire these responsibilities automatically.

Practical approach

The practical solution, in this situation, is for the non-marital father to apply for parental responsibilities and parental rights (or such of them as he wants) at the same time as he seeks to establish paternity. However, whether he is granted all or any responsibilities or rights will still be subject to the familiar, fundamental principles of child law: namely, the welfare of the child is the paramount consideration; account must be taken, in light of the child’s age and maturity, of any views the child wishes to express; and the court should make no order unless to do so would be better than not making the order(29).

The position of the non-marital father, clutching only a declarator of parentage, is similar to the situation where parents who already have full responsibilities and rights are in dispute over how they should be exercised. Failing resolution of the dispute by negotiation, mediation and the like, someone has to raise an action in court and the court will apply the principles outlined above. The difference is that the unregistered, non-marital father arrives at court with no responsibilities or rights and the onus of proof is on him to demonstrate why he should be accorded any.

However, that distinction loses much of its significance when one remembers the words of Lord McCluskey in the Inner House, when he said: “it is inconceivable that a court, charged with the duty in such a case of making a decision about the interests and welfare of a child… would make its judgment on the basis of the failure of one party or the other to discharge the onus of proof. To do so would be to abdicate the responsibility that the Act has laid upon the court to decide on the basis of the welfare and the interests of the child, and not upon technical considerations that have nothing directly to do with welfare or the interests of the child”(30).

There is also the third of the fundamental principles, of course, requiring the court to make no non-beneficial orders but, again, that has to be set alongside the paramountcy of the child’s best interests.

The real issue here is the child’s welfare. Where the mother is opposing the father’s registration, she has signalled that there is a dispute. It may stem from her fear for her own and her child’s safety or it may simply be that that the parents are unable to co-operate. The Scottish Parliament was alert to the problem of non-cooperation when it amended the Children (Scotland) Act 1995, in 2006, and required the court to address it(31).

The point is that there is a live dispute that impacts directly on the child’s welfare, and the only question is who should be put to the trouble and expense of raising the action to bring it before the court. Should it be the mother who, in the vast majority of cases, is caring for the child, or should it be the father who would like to be involved? The elephant in the room, of course, is the very real problem for all but the wealthy of access to legal services and to the courts. However, if the recommendation outlined above – court-ordered DNA testing – is followed, then the case will be before the court already and there are efficiency gains in regulating parental responsibilities and parental rights at that time.

Contempt of court

The third proposal in PE1513 relates to failure to comply with what Mr Park describes as a “request” from a court in the context of court-ordered DNA testing or other matters, like contact with the child, and he calls for this to be treated as contempt of court. Courts rarely make “requests”, and failure to obtemper a court decree is contempt of court.

During the discussions that preceded the Family Law (Scotland) Act 2006, some fathers’ rights groups argued that the courts were not responding adequately when mothers obstructed contact and called for more severe penalties for such conduct. These calls were rejected for the very sound reason that contempt of court can take many forms, and leaving the penalty to the court’s discretion is wholly consistent with the traditional Scottish preference for a nuanced approach rather than a rigid rule that might produce a wholly disproportionate result. While courts do not impose imprisonment for contempt lightly, the decision in S v M 2011 SLT 918 demonstrates that they will do so in appropriate cases. In short, there is no need to make further provision on contempt of court.

Conclusions

PE1513 is but the latest in a long line of attempts to reform Scots law on parentage and parenting. Indeed, it is less than a decade since the position of the non-marital father was improved immensely. It is worth remembering that the vast majority of fathers, whether married to their child’s mother or not, are registered as such. For those so registered since 4 May 2006, there is parental equality, at least in strictly legal terms.

Of the three proposals in PE1513, the third is unnecessary since the courts already have powers to deal with contempt. The first proposal – automatic registration of two parents – is not workable where the mother does not know the father’s identity, and gives priority to fathers’ rights, rather than the child’s best interests, in cases where there may be real cause for concern.

The second proposal accepts that an investigation into parental fitness will be necessary, in some cases, but fails to address the crucial matter of how that investigation should be triggered. It would be far better to trust the courts with a degree of discretion and empower them to order DNA testing in appropriate cases. Assuming paternity is established, the court could then move on to regulate parental responsibilities and parental rights, applying the child-centred principles that not only ensure the law complies with our international obligations – obligations endorsed by the European Court of Human Rights(32) – but have served the children of Scotland well hitherto. That, perhaps, is the real flaw in PE1513. It is all about adult rights when the paramount concern of Scots law is – and should remain – the best interests of children.

Elaine E Sutherland is Professor of Child and Family Law, Stirling Law School, University of Stirling, Scotland (elaine.sutherland@stir.ac.uk), and Professor of Law, Lewis and Clark Law School, Portland, Oregon (es@lclark.edu)

References

(2) On 11 January 2014 it issued the following statement: “The Equal Opportunities Committee is keen to hear about the experiences of single fathers and fathers with shared custody of children. We wish to identify the key challenges they face in day-to-day life and the quality of support currently available to them.” See www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/71633.aspx

(7) Registration of Births, Deaths and Marriages (Scotland) Act 1966, ss 13 and 14. For this purpose, “father” does not include “a father who is not married to the mother and has not been married to her since the child’s conception”: s 14(5).

(8) Ibid, s 18.

(9) Law Reform (Parent and Child) (Scotland) Act 1986, s 6(2).

(10) Ibid, s 6(3).

(11) Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, s 70. See Smith v Greenhill 1993 SCLR 944, where the court refused to draw a contrary inference from the married mother’s refusal when her former lover sought to establish paternity.

(12) He bases this on the assertion that there are 174,000 lone parents in Scotland, 92% of whom are female.

(18) That must be read alongside article 3 requiring primacy be accorded to the child’s best interests.

(19) Smith v Greenhill 1993 SCLR 944. The court refused to draw an inference when the former lover of a married mother sought to establish paternity and displace the presumption that the woman’s husband was the child’s father.

(20) YM v LB 2010 (6) SA 338 (SCA) (South Africa). In the event, there was no real dispute over paternity in the case, but the court explored the issue of ordering DNA testing and, at [17], it affirmed that the position remained as it had been stated by the Court in Seetal v Pravitha 1983 (3) SA 827 (A), at pp 864G-865C, that “it is not necessarily always in an individual’s interest to know the truth”.

(21) Welfare Reform Act 2009, s 56 and Sched 6.

(22) Family Law Act 1975, s 69 (Australia).

(23) The fact that the child was a product of rape might be such an example. The statutory provision could provide an exclusive list of “good reasons”, but that risks the omission of something unforeseen at the time of drafting.

(24) These might include the suggestion that testing would violate the child’s right to private life and the mother’s right to family life with her child. If testing of the mother could be ordered as well, then an argument based on her right to private life might enter the picture.